Monday, July 19, 2010

[UPDATE 07/19/2010: In the post below, I have addressed only how the new articles compare with the ACC's old Constitution and bylaws. I have not touched upon the larger issue, which is how the new articles have been ratified and adopted in the first place. The old Constitution provides in art. 10:

Amendments to this Constitution shall be submitted by the Council to the Constitutional bodies listed under clauses (b), (c) and (d) of the Schedule of Membership and must be ratified by two-thirds of such bodies provided that no amendment shall be made which shall cause the Council to cease to be a charity at law.

However, what we have here is not an amendment to the old Constitution as such, and a continuation of the old charitable entity, but the registration of a brand-new private limited company under British law. In a later post, I will address the very interesting subject of how this new ACC will, apparently, bootstrap itself into existence.]

Before the filing of the articles, the Anglican Consultative Council was a public registered charity (No. 276591) in England and Wales. It was registered on October 30, 1978 based on its original Constitution adopted by the member provinces of the Anglican Communion effective November 1, 1969. The members of its Standing Committee (originally nine members, plus the Archbishop of Canterbury ex officio) were incorporated under the Charitable Trustees Incorporation Act of 1872, and served as its legal trustees under British law. When the Primates' Standing Committee was joined to that of the ACC (see this earlier post), the group's membership increased to fifteen, but the official number of ACC Trustees remained at ten.

Up until the Lambeth Conference of 2008, the finances of that gathering were included within the ambit of the ACC. Growing dissension within the Anglican Communion, however, coupled with the increasing size and scope of the Conference, led to a decision to incorporate the Lambeth Conference as a separate public charity in 2007. As is well known, the withdrawal of nearly 300 bishops from the Global South before the Conference, and numerous innovations introduced at its 2008 gathering, resulted in a sizeable deficit in its operations, which was covered in the short term by loans from the Church Commissioners and Archbishop's Council. (The full loan facilities were not used, as total expenditures turned out to be less than anticipated. Private fundraising to repay the loans reduced the obligations to about £200,000 by August 2009, and the deadline for repayment was extended until the end of October, 2010.)

As a consequence of Lambeth, the staff of the ACC became cognizant of the fact that its own current finances were on a precarious footing, as well. In its annual report filed with the Charities Office for 2008, the ACC disclosed certain "risks to which the charity is exposed, particularly business, operational and financial risks." It said that (emphasis added):

Procedures will be introduced to manage and reduce the identified risks, and for future reviews to take place regularly. The skills needed by the Trustees[Standing Committee members] and the need to document and communicate governance arrangementsare two challenges faced by the ACC. . . .

The Trustees are aware that the Council is insufficiently resourced by the member churches at present for the programme of work it is charged with carrying out and therefore has to seek additional funding from outside sources. Financial viability is essential and insufficient income generation and the fact that over half of the member contributions come from two provinces [ECUSA and the Church of England] are significant risks, especially when relationships within the Communion are strained.

The 2008 Report also included this disclosure:

ACC 14 [the May 2009 meeting of the ACC in Jamaica] will be asked to receive a report to consider changes in the constitution, the aim of which would be to incorporate the ACC as a charitable company limited by guarantee.

The Trustees feel that this is a step on the road to improved governance with a better balance between the Instruments of Communion. Instead of a Joint Standing Committee made up of ACC Trustees and Primates Standing Committee, there will be one Standing Committee with Primates Standing Committee members becoming Trustees of ACC. The Inter Anglican Finance and Administration Committee will become a subcommittee made up of members of Standing Committee instead of being separately elected by ACC.

Before the Companies Act of 2006, the trustees of public charities could have personal liability for the obligations of the charity which they approved. The deficit run by the Lambeth Conference 2008 showed up exactly the dangers to which this kind of liability could have made the trustees of the ACC subject under the former law. This gave impetus to the move to bring the ACC within the ambit of the 2006 law, as well. (The Lambeth Conference charity itself took full advantage of the provisions of the 2006 law to limit the liability of its three trustees -- including the Rev. Canon Kennth Kearon, Secretary-General of the ACC -- to just £1 each. The new articles of the ACC limit the liability of its Trustee-Members to "a sum not exceeding £10" each.)

Now we have the results of this change in the ACC's status. A side-by-side comparison of the former constitution with the new articles is instructive. The following are the highlights which this one chancellor has identified:

1. The status of the ACC has changed from a registered public charity under former UK law to a private company limited by guarantee of its trustees under the 2006 Companies Act, as explained above. See this Wikipedia article for further details on the differences.

2. All fifteen members of the Standing Committee (formerly called the "Joint Standing Committee"), including the five Primates from the Primates' Standing Committee, appointed "as [the Primates] may decide from amongst themselves," are now full Trustee-Members of the ACC itself, with corresponding responsibilities under UK charitable law.

3. The new articles of association supplant all the former provisions of the old Constitution and bylaws with regard to the appointment, terms and qualifications of members of the ACC's Standing Committee. Those members are now called "Trustee-Members", because they assume (by signing a "declaration of willingness to act" before they may vote) all the responsibilities of private company trustees under UK law. For example, this old requirement of Bylaw 7 has been eliminated, with respect to filling "casual vacancies" on the Standing Committee (emphasis added):

Casual Vacancies on the Standing CommitteeIn the event of a casual vacancy occurring in the membership of the Standing Committee between Council meetings the Standing Committee itself shall have power to appoint a member of the Council of the same order as the representative who filled the vacant place and such member shall have full voting rights for the remainder of the term of service of the former member. Such member shall, subject to his or her eligibility for continuing membership of the Council, be eligible for re‑election to the Standing Committee at the next Council meeting.

Instead, the new articles provide that such casual vacancies among Trustee-Members shall be filled as follows (emphasis added):

8.8 In the event of a casual vacancy occurring amongst the Trustee-Members:

8.8.1 the remaining Trustee-Members shall have power to fill the vacancy by the appointment of a suitably qualified Member (having in mind the Object of the Council and the importance of achieving appropriate regional diversity and the balance of representation between clergy and laity and between the genders);8.8.2 such replacement Trustee-Member shall have full voting rights for the remainder of the term of service of the former Trustee-Member and8.8.3 such replacement Trustee-Member shall, subject to his or her eligibility for continuing as a Member, be eligible for re-election as a Trustee-Member at the next Plenary Session.

This change, dropping the requirement that the replacement be a member of the same order as the person whom they are replacing, is apparently the reason for the recent explanations from the ACC that the appointment of the two latest additions to the Standing Committee conforms to the new articles, rather than to the old bylaws. The parenthetical exhortation in paragraph 8.8.1 of the new articles tracks word-for-word the requirements in article 8.2.1 with regard to the election of Trustee-Members generally (whether regular or Primate Trustee-Members), and carries over the language from article 2 (e) of the old bylaws -- so that nothing changes with regard to the (desired) balance on the Standing Committee as a whole.

4. Perhaps one of the most significant changes from the old constitution to the new articles is in the specification of the ACC's objects and powers. In the old constitution, the sole object of the ACC was defined as: "to advance the Christian religion". In the new articles, the objects are now restricted to the following:

The Council's objects ("the Objects") are specifically restricted to the following: to advance the Christian religion and in particular to promote the unity and purposes of the Churches of the Anglican Communion in mission, evangelism, ecumenical relations, communication, administration and finance.

5. Likewise, the old article 2 of the constitution spelled out some eighteen specific powers which the ACC would have in furtherance of its object of "advanc[ing] the Christian religion", and then added the limitation that its conferred powers were "not further or otherwise". In contrast, the new article 5 begins as follows (emphasis added):

The Council has power to do anything which is calculated to further its Object(s) or is conducive or incidental to doing so. . . .

6. And there follow not eighteen, but thirty such separately enumerated powers. A close comparison shows that none of the older powers was eliminated or significantly curtailed, while among the twelve additional powers, added by the new article 5, are the following:

5.2 To share information about developments in one or more provinces of the Anglican Communion with the other parts of the Communion and to serve as needed as an instrument of common action.

This provision would seem to be tailored for dealing with the current problems engendered by the formation of ACNA. It did not exist in the previous ACC Constitution.

5.5 To establish, authorize, sponsor, or otherwise endorse (as the case may require) such Commissions, Networks or similar bodies as shall advance the Council's Object.

One can only wonder what "Commissions, Networks, or similar bodies" are envisioned here. Would, for example, the precursor of ACNA, the Network of Anglican Communion Dioceses and Parishes, be included within the sweep of this language, and so (by extension) ACNA itself?

Former Article 2 (l), which read as follows (emphasis added):

To establish an emergency fund or funds for the support of clergy in special needand for other charitable purposes in any part of the world.

has now been replaced by this expanded language in article 5.11 (emphasis added):

To establish an emergency fund or funds for the support of clergy and lay church workers and their dependants [sic] in special need and for other purposes in any part of the world.

The remainder of the newly specified powers are fairly standard for corporations subject to the usual supervision of the law, but these two new provisions are worth noting, at least (bold emphasis again added):

5.18 To establish or support any charitable trusts, associations or institutions formed for any of the charitable purposes included in the Objects;. . .5.21 To undertake and execute any charitable trusts which may lawfully be undertaken by the Council and to assist any charitable body or bodies financially or otherwise.

7. The remainder of the new provisions in the articles are generally welcome, and deal with such topics as conflicts of interest, new bylaws, indemnity for Trustee-Members, notice, and the like -- which are standard in such corporate documents. However, note should be taken of the following changes in the provisions for the election/appointment of member-representatives by the various churches in the Anglican Communion. The provisions in the old Constitution dealing with this subject were as follows:

3.b. Members shall be appointed as provincial, national or regional machinery provides. Alternate members shall be appointed in a similar manner, and shall be invited to attend a meeting if the ordinary member is unable to be present for a whole session of the Council. Any appointment of a member or alternate member may be revoked by the body which made the appointment.

The new corresponding provisions read as follows (emphasis added):

15.1 Members shall be appointed as provincial, national or regional electoral machinery provides but each of the appointing bodies shall have regard to the desirability of ensuring that any Member appointed to represent it at Plenary Sessions of the Council shall be a member of its own representative structures and that such person shall be given appropriate opportunity to report the proceedings of the Council to its own decision-making bodies and to convey the views of such decision-making bodies to the Council.. . .15.6 Deputy or alternate Members may be appointed (and such appointment revoked) by the relevant appointing body, and such deputy or alternate Members shall be invited to attend a meeting if the ordinary Member is unable to be present for a Plenary Session of the Council; a deputy or alternate Member may be re-appointed as a deputy or alternate Member, or may be appointed as an ordinary Member, unless he or she has already replaced a Member at two Plenary Sessions of the Council.

One has to ask how these new provisions would have applied in the case of the Province of Uganda's appointment of the Rev. Philip Ashey as an alternate to replace a previously elected member to ACC-14 who was unable, at the last minute, to attend. On the surface, they place no restrictions whatsoever upon any such appointment. One has to recall, however, that the Standing Committee at the time assumed the authority to disqualify the Rev. Ashey from so acting, on the basis of the following language in Article 4 (e) of the old constitution (emphasis added):

Any appointing body as set out in the Schedule of Membership shall have power at any time and from time to time to appoint any qualified person to be a member to fill a casual vacancy to hold office for the unexpired term specified in Clause 4(b).

This same language is now carried forward in the new Article 15.5. However, it did not stop the Standing Committee of ACC-14 from misapplying it then, and so there is no reason to expect that matters will be any different after the adoption of the new articles. Because the Rev. Ashey was physically resident in the United States, while being canonically resident in the Anglican Church of Uganda, the Joint Standing Committee at ACC-14 decided on its own that he was not "qualified" under this provision to replace -- even temporarily, and not for the balance of the delegate's unexpired term of office -- a delegate from Uganda who was unable to attend that particular session of ACC-14. In the new articles, the language about a "qualified person" is repeated unchanged -- but again, with regard to a person appointed to fill the unexpired term of a member unable further to attend ACC meetings. So there is nothing in the new articles which will prevent the Standing Committee from exceeding its powers once again, if that is what it decides to do as it did in the case of the Rev. Ashey.

8. Next, note this change in how the Schedule of Membership in the Anglican Consultative Council may be altered. Former constitution section 3 (a) provided:

The Council shall be constituted with a membership according to the Schedule hereto. With the assent of two-thirds of the Primates of the Anglican Communion, the Standing Committee may alter or add to the Schedule.

But under the new articles, positive assent by a two-thirds majority of the Primates is not required. Their failure to object to a proposed amendment within four months is deemed to be a consent to the change, according to new article 7.2:

7.2 The Member-Churches of the Council shall be those bodies listed in the Schedule to these Articles each of which shall be entitled to send the specified number of Members to the Plenary Sessions of the Council mentioned in Article 16 below; with the assent of two-thirds of the Primates of the Anglican Communion (which shall be deemed to have been received if not withheld in writing within four months from the date of notification) the Standing Committee may alter or add to the Schedule.

The Schedule of Members attached to the new articles does not list in section 3 the Church of Ceylon as a member entitled to send one delegate, although it was so listed in Schedule (d) of the old constitution. On the official Website, that Church now "continues as extraprovincial under the Archbishop of Canterbury."

9. Finally, what do the new articles provide in the case of the Rt. Rev. Ian Douglas, Bishop of Connecticut, who previously served as ECUSA's clergy delegate to ACC before he was ordained to the episcopate in April 2010? As detailed in this previous post, the Executive Council's recent election of Bishop Douglas to serve as ECUSA's successor to its previous episcopal delegate to ACC violated both the ACC's Constitution and bylaws. The new articles carry forward the same restrictions on successorship as existed in the old constitution and bylaws. Article 8.5 provides, the same as did section 2 (f) of the old bylaws:

The Trustee-Members . . . shall hold office from the end of the Plenary Session at which they are elected until the end of the last ordinary Plenary Session which they would be entitled to attend as Members but subject to earlier termination in the event that such Trustee-Member shall for any reason cease to be a Member.

In April 2010, the Rev. Ian Douglas was consecrated as a bishop in ECUSA. At that point, as argued in the post previously linked, he became no longer eligible to serve as ECUSA's clergy delegate to the ACC, in accordance with article 4 (d) of the old constitution:

Bishops and other clerical members shall cease to be members on retirement from ecclesiastical office.

Arguably, "retirement from ecclesiastical office" would include Bishop Douglas' leaving the priesthood to become a bishop in ECUSA, given that he could no longer serve as the clergy member elected to the ACC from ECUSA. But the language of new article 15.3, if anything, is even more explicit on this point, due to the addition of the word "relevant" (emphasis added):

Primates and other clerical Members shall cease to be Members on retirement from relevant ecclesiastical office.

If Bishop Douglas thus "retire[d] from relevant [i.e., clerical] ecclesiastical office" when he was ordained to the episcopacy in April 2010, how was he eligible for election as ECUSA's episcopal delegate two months later? For under both the old constitution and the new articles, Ian Douglas was not eligible for immediate reappointment. Old section 4 (c) of the constitution -- in effect in April 2010 -- provided:

On termination of his or her period of office, no member shall be eligible for re-appointment nor shall he or she be appointed an alternate member until a period of six years elapses from the date when such original membership ceased.

And the corresponding provision of the new articles is, if anything, even more explicit (emphasis added):

15.4 On termination of his or her period of office, no Member shall be eligible for reappointment nor shall he or she be appointed a deputy or alternate Member until a period of three years or one ordinary meeting of the Council in Plenary Session (whichever shall be the longer period) has elapsed from the date when such original involvement with the Council ceased.

The Rev. Douglas's initial involvement with the ACC began with his election as a clergy member to attend ACC-14 in May 2009. That involvement ceased with his election to the episcopacy in April 2010, since he could no longer serve as ECUSA's clergy member from that point forward. The fact that he delayed his resignation from the ACC so that Executive Council could "elect" him as its "new" episcopal delegate in June 2010 does not change the circumstances, under either the old or the new language. The term of ECUSA's previous episcopal delegate, the Rt. Rev. Catherine A. Roskam, had not yet expired as of June 2010, so there was no vacancy in that position to fill.

10. And now, a postscript: we learned recently that Archbishop Henry Orombi of Uganda had in May of this year resigned his position on the ACC Standing Committee, after not attending its meetings in 2009, and announcing he would not attend any meetings in 2010. Now, look at what the new articles provide -- for the first time -- in section 8.7.5 (emphasis added):

8.7 A Trustee-Member's term of office automatically terminates if he or she:. . .8.7.5 is absent without the permission of the Trustee-Members from two successive ordinary meetings and a majority of the Trustee-Members resolve that his or her office be vacated.

Unlike the case for Bishop Douglas, the handwriting was on the wall for Archbishop Orombi. His resignation from the Standing Committee, out of sheer integrity before the new provisions would have allowed the Standing Committee meeting later this month to remove him, provides a shining counterexample to the base manipulation of ECUSA, its Executive Council, and Bishop Douglas himself in arranging for the latter to keep his seat on the ACC, in violation of every applicable provision in both its then and currently existing governing documents. (How rich it is for ECUSA's Presiding bishop to accuse the Archbishop of Canterbury of supporting a resurgence of "colonial" attitudes in the Anglican Communion.) If one wanted to look for an explanation of the current gulf dividing the Anglican Communion, one would be hard-pressed to find a greater contrast between the principled conduct of those in the Global South, and the shameful, disgraceful conduct of those in ECUSA.

2 comments:

The ACC thus puts itself on the same legal footing as every church in the C of E. As of about 2 years ago, every member of any PCC is legally a trustee for the church which they serve, thus creating an enormous bureaucracy for the Charity Commission every April when PCC membership of every church in the land changes at the AGM. The ACC, however, doesn't have the legal responsibility for buildings that being a PCC member carries, and one wonders just what charitable activities the ACC is responsible for, bearing in mind its status as a fact-finding (and spinning) organisation.

Acts 5:38-39 comes to mind. It seems as if the Instruments have failed and they are incorporating as a private business to avoid the ongoing risk of financial collapse.

At best, this is akin to placing a brain-dead patient on life-support and keeping it in a wasting and vegetative state.

At worst - and especially given the message promulgated by the western members - they're animating a zombie or injecting the Instruments with Borg nanomachines. (Pick your favorite mythos... I like the latter because it has a malevolent queen behind the scenes.)

The AC as it has existed is dead - these legal machinations are the squabbling relatives fighting over the seedy assets in the decedent's estate. The Global South doesn't see anything worth fighting for when the real assets (souls) are not part of the estate anyway. They can live with a default judgment in probate court.

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